ZOBON AUSTRALIA PTY LTD (Migration)

[2020] AATA 5025

ZOBON AUSTRALIA PTY LTD (Migration) [2020] AATA 5025 (28 October 2020)

DECISION RECORD

DIVISION:   Migration & Refugee Division

APPLICANT:   ZOBON AUSTRALIA PTY LTD

CASE NUMBER:   1805749

HOME AFFAIRS REFERENCE(S):            BCC2016/2319217 

MEMBER:   Susan Reece Jones

DATE  28 October 2020   

PLACE OF DECISION:   Melbourne

DECISION:   The Tribunal sets aside the decision under review

and substitutes a decision approving the nomination.  

Statement made on 28 October 2020 at 10:29am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Bed and Breakfast Operator – financial capacity to maintain employment – BAS Statements showed business running at a loss – disparity between the BAS and the Financial Statements – differences in accounting practices and obligations between China and Australia – applicant part of a well-funded group – ability to tolerate temporary financial loss – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 February 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 11 July 2016. The requirements for the approval of the nomination of a position of Bed and Breakfast Operator (ANZSCO: 141911) in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy

   r.5.19(3) (d) of the Regulations because the applicant failed to demonstrate that the nominated person would be employed on a full-time basis in the position for at least two years.

5. The Tribunal received a review application on 5 March 2018. It was signed on behalf of the applicant by Edward Wei, the applicant’s sole director. The review application was accompanied by a copy of the delegate’s decision.

6. On 15 June 2020, the Tribunal wrote to the applicant pursuant to s359(2) of the Migration Act, inviting the applicant to provide further evidence in support of its case. 

7. On 25 June 2020, the applicant provided the following:  

   ·ASIC Current and Historical Extract dated 15 June 2020

   ·ASIC Business Registration 

   ·Business Plan

   ·Financial Statements: 2015, 2016, 2017, 2018, 2019 

   ·Applicant ATO Tax returns   

   ·Organisation Chart

   ·Position description 

   ·Employment Agreement dated December 2013 and June 2019  

   ·Training Benchmarks payment receipts 2015 to 2019 

8. On 19 August 2020, the Tribunal received correspondence from the Representative to advise that the applicant director Mr Edward Wei is currently in China and unable to attend the scheduled hearing and instead his authorised Mr Xianghong (James) Liang was provided the necessary authority to represent the applicant at the hearing.

9. On behalf of the applicant, Mr Liang appeared before the Tribunal on 28 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr. Marco Soldi.  

10. The applicant was represented in relation to the review by its registered migration agent, Mr Willem Oostdyck of Christopher Levingston & Associates.

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. Following the hearing, on 16 September 2020, the applicant provided further evidence in support of its application; namely,

    ·Financial report: 2020

    ·Letter from Accountants Addsum Pty Ltd, from Partner, Sheldon Mak (dated 15 September 2020)

·Employment Agreement for nominee dated 7 September 2020

·Job description

·Nominee Payslips

·Payroll summary for nominee

·Nominee Bank statements  

·Nominee Superannuation: Hostplus  

·JWP Planning Pty Ltd re Planning proposal for “Tellace Resort”

·Email communications with JW Planning

1. The applicant was represented in relation to the review by its registered migration agent. 

2. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in

   r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

The application must be compliant: r.5.19(3)(a)

1. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

2. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

3. Given the above findings, the requirement in r.5.19(3)(a) is met.

Status of the nominator: r.5.19(3)(b)

1. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

2. The Department’s records indicate that the applicant was approved as a standard business sponsor from 24 February 2014 to 24 February 2017. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Marco Soldi, and nominated him for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

3. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration and its Financial Statements for 2016 to 2020 and recent BAS Statements in 2020, which show that it is actively trading.

4. Given the above, the requirement in r.5.19(3)(b) is met.

Previous employment of the nominee: r.5.19(3)(c)

1. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

   •    the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

   •    the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

2. The Tribunal is satisfied on the evidence before it that:

   •the nomination was made on 11 July 2016 for the position of Bed & Breakfast Operator (ANZSCO: 141911);

   •the relevant 3-year period is therefore 11 July 2013 to 11 July 2016;

   •the nominee was initially employed by the applicant in March 2014 while the holder of a 457 visa;

   •the nominee applied for a subclass 457 visa on 6 December 2013 on the basis of his nomination by the applicant and was granted a Bridging visa A on 7 December 2013;

   •he was granted a subclass 457 visa on 24 February 2014, which was valid until 24 February 2018; and

   he had therefore worked for the applicant in the nominated position for approximately 2.4 years prior to the nomination, and for 2.4 years in the 3-year period immediately prior to the nomination application being lodged.

3. Given the above findings, the requirement in r.5.19(3)(c) is met.

Future employment of the visa holder: r.5.19(3)(d)

1. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a fulltime basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

2. The Department refused the nomination because the applicant did not show a financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. 

3. The Department noted in its decision that on assessing the information submitted, the applicant did not demonstrate that the nominee will be employed on a full-time basis in the position for at least two years. Whilst the applicant provided BAS statements for 2014, 2015 and 2016, it did not provide other supporting material such as Financial Statements or a letter from the applicant’s accountants. Further, the BAS statements indicated that the business was running at a loss and therefore, it was not demonstrated that the business had the ability to offer the nominee full time employment for at least the next two years.

4. At the hearing, the applicant’s nominated representative, Mr Liang, told the Tribunal that the applicant is part of a large business group which amongst other things, owns The Intercontinental Hotel in Sydney, NSW.  The applicant’s major corporate shareholder, Jointek, is domiciled in Shanghai, China and is a leading wine importer to China. Mr Liang advised the Tribunal that Jointek established the applicant so it could acquire the winery site in the Hunter Valley.            Since then, the applicant has operated a winery cellar door, undertaken wine sales and exports to China and commenced operating the Bed & Breakfast at the Tellace Estate Homestead, which is managed by the nominee. In addition, Mr Liang told the Tribunal that the group has completed residential property developments in Epping and Lane Cove in Sydney, and is currently undertaking another 3 residential property developments, also in Sydney.

5. According to both Mr Liang and the nominee at hearing, the applicant has, since acquiring the winery site, operated tours from China to its various hotel sites and to the winery. The applicant, Mr Liang advised, has future plans for the “Zobon Jointek Vineyard Resort Manor- Hunter Valley (the Tellace Resort) project. The Tribunal notes that per the evidence provided by Mr Liang at hearing, that approval for the development has not been lodged with the local Hunter Valley Shire Council. In issue for the applicant in relation to future planning issues of the site, according to Mr Liang, are the changes to the Chinese government’s currency export regulations. Mr Liang told the Tribunal that the applicant has spent to date approx. $400,000 in relation to the site development preparation. The applicant provided the Tribunal with evidence of the development planning including the plans and work undertaken by JWP Planning Pty Ltd in relation to the planning proposal for Tellace Resort at the Hunter Valley winery.

1. The applicant provided recent BAS Statements and also provided other supporting material such as Financial Statements and a letter from the applicant’s Accountants (discussed further below). The Tribunal’s review of the applicant’s Financial Statements finds as follows:

$	2015	2016	2017	2018	2019	2020
Total income	248,982	554,846	590,773	718, 975	956,708 *	431,064*
Accommodation	172,575	160,466	197,727	Nil  (incl above)	104,629
Gross profit	(317,015)	554,846	590,773	511,715	528,803	282,392
Total assets	515,462	626,167	1,335,603	556,089	1,211,167	499,480
Total liabilities	866,770	924,859	1,580,708	1,344,181	749,486	595,628
Cash @ Westpac Bank	383,633	1,259,660	375,794	750,144	17,223

*Sales show export, cellar door sales

35.The Tribunal notes that the income of the applicant is attributable to cellar door sales in addition to receipts from the Bed & Breakfast operation. Analysis of the Financial Statements shows a line item stated as Accommodation, being the income attributed to the Bed & Breakfast operation run by the nominee.

36.The Tribunal’s review of the applicant’s BAS Statements 2018-2019 finds as follows:

$	Sales	Salary
2018
January – March	4,456	65,672
April – June	4,507	28,752
July – September	2,985	37,980
October – December	1,347	46,601
13,295	179,005
2019
January – March	705,333	34,677
April – June	876,751	52,403
July – September	4,401	39,719
October – December	158	45,231
1,586,643	172,030

37.The Tribunal discussed the disparity between the BAS and the Financial Statements with the applicant at hearing. Mr Liang told the Tribunal at hearing that since 2017, the applicant has improved its accounting processes in Australia, acknowledging that the applicant’s group of companies has had learn to understand the difference between Chinese and Australian regulations in regard to financial management regulations. Mr Liang further advised the Tribunal that the applicant has taken significant steps to ensure its compliance with Australian accounting obligations, as it is legally required to do. In support of this claim to the Tribunal, following the hearing the applicant provided a letter from Accountants Addsum Pty Ltd (from Partner, Sheldon Mak) dated 15 September 2020 outlining the differences in accounting practices and obligations required of the applicant as a small business (discussed further below).

38.The applicant is by all accounts, part of a well-funded group and, as Mr Liang stated to the Tribunal at hearing, ‘able to tolerate temporary financial loss’, given COVID-19. The Tribunal notes that the 2020 Financial Statements provided by the nominee include a Job Keeper contribution.

39.Following the queries raised by Tribunal at hearing about the applicant’s 2019 Financial Statements, the letter from the applicants Accountants submitted:

·     The applicant’s aggregated turnover is less than $10m and [it] is therefore allowed to use the cash accounting method for the BAS;

·     The applicant currently reports quarterly BAS on a cash basis which reports inter alia,  

on payments actually received or provided, which may be different to the amounts recognised in the applicant ‘s Profit & Loss calculations;

·     The applicant’s bookkeeping and income tax is recorded on an accrual basis – i.e. revenue and expenses recorded when a transaction occurs;

·     Therefore, the total income amount in the BAS may not be consistent with final report and income tax report;

·     that there was $510,000 of income relating to 2018 relating to management fees from overseas entities; and

·     the applicant discovered some sales transactions during 2018 being under reported on basis but has now correctly reported for income tax return and Financial Statements purposes.

1. Having considered the available evidence, including the post-hearing submissions provided by the applicant’s accountant, which the Tribunal accepts, the Tribunal is satisfied that the applicant has the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. 

2. Given the above findings, the requirement in r.5.19(3)(d) is met.

No less favourable terms and conditions of employment: r.5.19(3)(e)

1. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

2. The Tribunal is in receipt of the nominee’s employment contract 1 December 2013 which provides for a salary of $ 55,000 plus super.

3. The nominee’s amended Employment Agreements dated June 2017 and more recently                17 September 2020 provides for a salary of $63,000 (plus superannuation), the nominee PAYG shows as follows: 

$	2016	2017	2018	2019
PAYG	55,000	55,000	55,000	61,526

1. The applicant employs 3 employees, 2 of whom are Australian. The nominee told the Tribunal that he commenced working with the applicant in 2014 and that he operates the Bed n Breakfast at the site on the winery in the Hunter Valley and has improved its occupancy over time. He noted to the Tribunal that bookings from November 2020 to March 2021 were for 5 days in every week as opposed to only 3 days per week prior to COVID-19.    

2. The nominee further told the Tribunal that he manages all bookings and a wide array of requests for guests when weddings, birthday weekends and other such events are involved. Notably, the nominee told the Tribunal, many of the new bookings are for repeat guests. The nominee also explained his role as including preparing BBQ functions for guests and arranging for cleaning the guesthouse when guest have departed.

3. The nominee, who also speaks Chinese, also provided the Tribunal with an overview of the expansion plans proposed by the applicant and by all accounts has been engaged with liaison with the applicant’s planning for 20+villas on site on behalf of the applicant, being Tellace Resort at the Hunter Valley winery.

4. The Tribunal was provided with the nominee’s payroll, including 2020 payslips, the nominee’s CBA bank statements and his superannuation with Hostplus.

5. The Tribunal finds that there is no equivalent Australian employee, hence the Tribunal has consulted a range of sources of information, including:

   •the Payscale website accessed 15 October 2020, indicates that in Hunter Valley, NSW, a Hotel or Motel Manager earns an average salary of $1,200 - $1,300 per week, with the salary range being from $62,400 to $67,600 annually:

   /Hourly_Rate

   •advertisements for hotel/motel manager positions in Hunter Valley listed on Seek.com.au as at 23 October 2020 where a salary range is given up stated up to $21- $29 per hour (or annualised $41,496 - $57,304): -hotel-motel-manager? Where=Newcastle & Maitland & Hunter

6. From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.

7. The Tribunal is further satisfied that the Employment Agreements dated December 2013, June 2019 and September 2020 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

1. Accordingly, the requirement in r.5.19(3)(e) is met.

Training commitments and obligations: r.5.19(3)(f)

1. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval.

2. These requirements may be disregarded if it is reasonable to do so.

3. The most recent Standard Business Sponsorship for the applicant commenced on 24 February 2014 to 24 February 2017.

4. The training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable period were set out in written instrument      IMMI 13/030 as follows:

   • A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
   • B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

• paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

• funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

• employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

• employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

• evidence of payment of external providers to deliver training for Australian

employees

• on-the-job training that is structured with a timeframe and clearly identified

increase in the skills at each stage, and demonstrating:

• the learning outcomes of the employee at each stage;
• how the progress of the employee will be monitored and assessed;
• how the program will provide additional and enhanced skills;
• the use of qualified trainers to develop the program and set

assessments; and

• the number of people participating and their skill/occupation

1. However, it does not include expenditure on training that is:

   • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
   • confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity
   • only undertaken by persons who are not Australian citizens or permanent residents
   • only undertaken by persons who are principals in the business or their family members
   • only relating to a very low skill level having regard to the characteristic and size of the business.

1. In response to the Tribunal’s request for documentary evidence in relation to the Training Benchmark payments, the applicant provided evidence in relation to its compliance with Training Benchmark B provisions including training delivered to the Australian employees and supporting receipts from MVP Training and Employment Solutions.

2. As the applicant’s Standard Business Sponsorship commenced in February 2014 and ran to February 2017, the Tribunal’s assessment of the Training Benchmark B obligations is as follows:

$	2015	2016	2017	Sub-total	2018	2019
Payroll	$208,680	$194,270	$175,195	$190,608	$171,661
Training Benchmark B 1%	$2,087	$1,942	$1,751	$5,780	$1,906	$1,716
Training	$1,250	$1,800	$2,850	$5,900	$1,800	$1,850

1. The Tribunal is therefore satisfied that the applicant meets Training Benchmark B in relation to its recent training expenditure.

2. Accordingly, the requirement in r.5.19(3)(f) is met.

No adverse information known to Immigration: r.5.19(3)(g)

1. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.  

2. The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

3. Accordingly, the requirement in r.5.19(3)(g) is met.

Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

1. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

2. There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or New South Wales by the applicant.

3. Accordingly, the requirement in r.5.19(3)(h) is met.

4. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Susan Reece Jones
   Member

   ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions (employer nomination)

…

(2)The application must:

(a)      be made in accordance with approved form 1395…; and

(aa)  include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

(b)      be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3)The Minister must, in writing, approve a nomination if:

(a)      the application for approval:

(i)is made in accordance with subregulation (2); and

(ii)identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and (iii) identifies an occupation, in relation to the position, that:

(A)is listed in ANZSCO; and

(B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

(b)      the nominator:

(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii)is actively and lawfully operating a business in Australia; and

(iii)did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or

2.68(i), in the most recent approval as a standard business sponsor; and

(c)      either:

(i)both of the following apply:

(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:  (I) held one or more Subclass 457 visas for a total period of at least 2 years; and

(II) been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

(B)the employment in the position has been full-time, and undertaken in Australia; or

(ii)all of the following apply:

(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B); (B) the nominator nominated the occupation;

(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d)      for a person to whom subparagraph (c)(i) applies:

(i)the person will be employed on a full-time basis in the position for at least 2 years; and

(ii)the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e)      the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i)are provided; or

(ii)would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f)       either:

(i)the nominator:

(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

(ii)it is reasonable to disregard subparagraph (i); and

Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

(g)      either:

(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h)      the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.